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November 25, 1950



James P. McArdle, Pittsburgh, for Howard Gross.

P. J. McArdle , Pittsburgh, for George Manko.

Jason Richardson, Frank R. Bolte, Pittsburgh, amici curiae.

Charles J. Margiotti, Atty. Gen., W. Denning Stewart, Sp. Deputy Atty. Gen., Maurice H. Goldstein, Asst. Sp. Deputy Atty. Gen., for appellee.

Before Hirt, Acting P. J., and Reno, Dithrich, Ross, Arnold, and Gunther, JJ.

Author: Hirt; Arnold

[ 168 Pa. Super. Page 178]

HIRT, Judge.

And now, November 25, 1950, adjudications and sentences reversed. An opinion will be filed at a later date.

RHODES, P. J., absent.

ARNOLD, Judge.

These two cases were argued together and will be disposed of in one opinion.

A special investigating grand jury was summoned in Allegheny County upon the petition of the Attorney General of Pennsylvania to inquire particularly concerning the defrauding of the city of Pittsburgh by the use of labor, materials and supplies for private purposes. The petition set forth: (a) That Thomas E. Kilgallen, president of city council, together with one Howard Gross (appellant), supervisor of the department of lands and buildings of the city, unlawfully and corruptly used city labor and materials upon property of Kilgallen in Butler County, and upon the property of others in Butler and Allegheny Counties. (b) That Gross and George Manko (appellant) unlawfully and corruptly appropriated labor and materials of the city for the private use and benefit of Gross. (c) That thereby the city was cheated and defrauded. (d) That Kilgallen, Gross, Manko and others entered into a general conspiracy to cheat and defraud the city by the

[ 168 Pa. Super. Page 179]

    means aforesaid, for the private benefit of Kilgallen and other officials and city employes.*fn1

The court below charged the special grand jury to investigate the aforementioned charges, and that if 'the evidence warrants the indictment of a particular individual for any reason, you will recommend his indictment. * * *'

It will thus be seen that Gross and Manko, severally appellants here, were accused, by name, of particular offenses and of a general conspiracy to misappropriate city labor and supplies.

Gross and Manko were called to testify before the grand jury and each declined to answer certain questions on the ground that the answers would incriminate him. The being reported to the court, each was adjudged guilty of contempt; and upon refusing to purge himself of the contempt, by answering the questions, was sentenced to a fine and imprisonment.

Article I, Section 9, of the Pennsylvania Constitution, P.S., as far as pertinent, reads: 'In all criminal prosecutions the accused * * * cannot be compelled to give evidence against himself * * *.'

Since each of the appellants, by name, was accused of crime in the petition of the Attorney General, any action of the grand jury recommending indictments against Gross and Manko, was as effective to lay an

[ 168 Pa. Super. Page 180]

    indictment before a grand jury as a prosecution begun by the filing of an affidavit before a committing magistrate, -- and certainly no one can claim that the Commonwealth could compel the defendant to testify before such a magistrate.

Where one is charged with a specific crime or crimes in a petition for the calling of an investigating grand jury, such person is not merely a witness. The only purpose of calling him as a witness is to obtain proof of the criminal charges, i. e. to have him give evidence against himself. He therefore cannot be compelled to testify before the grand jury if he claims his constitutional privilege. See the very able opinion of Hon. W. Russell Carr in Commonwealth v. Bane, 39 Pa. Dist. & Co. R. 664, the reasoning of which we adopt. To say that a person accused of a crime can be compelled to testify as a witness before an investigating grand jury merely because that jury can only recommend an indictment, is fallacious.

We are also of the opinion that answers to the questions asked each of the appellants might very well be incriminatory.*fn2 While the witness, of course, is not the sole judge of whether the answer might be incriminating,

[ 168 Pa. Super. Page 181]

    yet each question must be viewed in the light of whether the answer can implicate the witness. The classic American definition of an incriminating question is found in the opinion of Chief Justice Marshall in United States v. Burr (in re Willie) 25 Fed.Cas. 38, No. 14,692e. It was followed by this Court in the case of Contempt of Myers and Brei, v. Commonwealth, 83 Pa. Super. 383, 389, and is as follows: 'When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be. The court cannot participate with him in this judgment, because they cannot decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judges would strip him of the privilege which the law allows, and which he claims.'*fn3 (Italics supplied.) Wigmore on Evidence, 3d ed. ยง 2260, states the rule: 'Most criminal acts are made up of two or more subordinate facts, each essential to the completed crime. For example, embezzlement assumes (1) a position of trust or employment, (2) the receipt of valuables by the incumbent, (3) their improper disposal. So also arson at common law involved (1) the existence of a structure,

[ 168 Pa. Super. Page 182]

(2) its use as a dwelling, (3) the setting fire by the accused, (4) a destruction of some part of the structure. Again, forgery by utterance involves (1) possession by the accused (2) of a certain kind of document (3) false in its nature, and (4) its transfer to another person. In all these instances, no one of the component facts constitutes of itself the crime and yet every one of them must be established in order to establish the crime. It is therefore obvious that unless the privilege is to remain an empty formula easily evaded, its protection must extend to each one of these facts taken separately, as well as to the general whole. It would be immaterial whether the evasion consisted in obtaining from the witness himself all these component facts by separate inquiries, or in obtaining one such fact by inquiry of himself and the remainder by other proof; the difference would be merely in the quantity of evasion; for it would be the witness' own disclosure which still would be essential to complete the proof, and his own disclosure would thus essentially involve a criminating fact.' See also Blau v. United States, U.S., 71 S.Ct. 223.

For these reasons we reversed the respective judgments.

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